ASSIGNMENT AND ASSUMPTION OF LEASE
Harlingen, TX
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment")
is made and entered into as of the 17th day of February,
2006, by and between XXXXX-XXXXX DEVELOPMENT GROUP, LTD., a
Texas limited partnership ("Assignor"), and to AEI NET LEASE
INCOME & GROWTH FUND XIX LIMITED PARTNERSHIP, a Minnesota
limited partnership ("Assignee").
RECITALS:
A. Assignor and Assignee are parties to that certain
Commercial Purchase and Sale Contract dated November 16,
2005, (the "Agreement"), pursuant to which Assignee is
acquiring from Assignor the real property, and improvements
located on such property, more particularly described on
EXHIBIT A attached hereto and incorporated herein by this
reference (the "Premises").
B. Pursuant to the terms of the Agreement, Assignor
desires to sell, assign, convey, transfer and set over to
Assignee and Assignee desires to assume all of Assignor's
interest in that certain Lease dated January 28, 2005 (the
"Lease") by and between Assignor and Advance Stores Company,
Incorporated (the "Tenant"), as evidenced by that certain
Memorandum of Lease dated _____________, 2006, which was
filed and recorded as of the date hereof in Volume ____,
Page _____ in the Official Public Records of Cameron County,
Texas, including all rents prepaid for any period subsequent
to the date of this Assignment, subject to the terms and
conditions set forth below.
C. Assignor is the Landlord under the Lease with full
right and title to assign the Lease, and the "Rent" (as
defined below) to Assignee as provided herein. The Lease is
in full force and effect and has not been modified or
amended. So far as is known to Assignor, there is no
default by Tenant under the Lease, and no Rent has been
waived, anticipated, discounted, compromised or released.
NOW, THEREFORE, in consideration of the Recitals, which
are hereby made a part hereof, for other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties, Assignor and Assignee
hereby agree as follows:
1. Assignor hereby irrevocably and unconditionally sells,
assigns, conveys, transfers and sets over unto Assignee, its
heirs, successors and assigns as of the date hereof (the
"Effective Date"), all of Assignor's right, title and
interest in, to and under: (i)
the Lease, and (ii) any and all rents prepaid as of the
Effective Date, held by Assignor in connection with the
Lease (the "Rent").
2. Except as otherwise set forth in Paragraph 4 hereof,
Assignee hereby assumes and shall be liable for any and all
liabilities, claims, obligations, losses and expenses,
including reasonable attorneys' fees arising in connection
with the Lease, which are actually incurred, and which arise
by virtue of acts or omissions occurring thereunder on or
after the Effective Date. Assignor shall indemnify and hold
Assignee harmless from any and all liabilities, claims,
obligations, losses and expenses, including reasonable
attorneys' fees arising in connection with the Lease which
are actually incurred, and which arise by virtue of acts or
omissions occurring thereunder, prior to the Effective Date.
Except as otherwise set forth in Paragraph 4 hereof,
Assignee shall indemnify and hold Assignor harmless from any
and all liabilities, claims, obligations, loss and expenses,
including reasonable attorneys' fees, arising in connection
with the Lease or as a result of Assignee's failure to
fulfill the landlord's duties and obligations accruing under
the Lease on or after the Effective Date. Assignee shall be
entitled to receive all income arising from the Lease from
and after said Effective Date. Assignor shall be entitled to
receive all income accruing from the Lease prior to the
Effective Date. In the event that Assignor is paid any
rents after the Effective Date, Assignor agrees to pay such
to Assignee as soon as reasonably practicable after the date
of receipt by Assignor.
3. Assignor shall direct the Tenant and any successor
tenant under the Lease to pay to Assignee the Rent and all
other monetary obligations due or to become due under the
Lease for the period beginning on the Effective Date.
4. Notwithstanding anything contained herein or implied
hereby to the contrary, Assignor shall remain liable for the
performance of the obligations of the "Landlord" under the
Lease with respect to Landlord's obligations under Section 2
of the Lease.
5. This Assignment shall be governed by and construed in
accordance with the laws of the state in which the Property
is located.
6. All rights and obligations of Assignee and Assignor
hereunder shall be binding upon and inure to the benefit of
Assignor, Assignee and the heirs, successors and assigns of
each such party.
7. This Assignment may be executed in any number of
counterparts, each of which shall be effective only upon
delivery and thereafter shall be deemed an original, and all
of which shall be taken to be one and the same instrument,
for the same effect as if all parties hereto had signed the
same signature page. Any signature page of this Assignment
may be detached from any counterpart of this Assignment
without impairing the legal effect of any signatures thereon
and may be attached to another counterpart of this Agreement
identical in form hereto but having attached to it one or
more additional signature pages.
8. Whenever the context so requires in this Assignment,
all words used in the singular shall be construed to have
been used in the plural (and vice versa), each gender shall
be construed to include any other genders, and the word
"person" shall be construed to include a natural person, a
corporation, a firm, a partnership, a joint venture, a
trust, an estate or any other entity.
ASSIGNOR: XXXXX-XXXXX DEVELOPMENT GROUP, LTD.,
a Texas limited partnership
By: DSL Management, L.L.C.,
a Texas limited
liability company,
its General Partner
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Its: President
STATE OF TEXAS )
) ss.
COUNTY OF XXXXXXX)
This instrument was acknowledged before me on the 16
day of February, 2006, by XXXX XXXXX, acting in his capacity
as President of DSL Management, L.L.C., General Partner of
Xxxxx-Xxxxx Development Group, Ltd., A Texas Limited
Partnership, and on behalf of said Partnership.
[Notarial Seal]
/s/ Xxxxxxx X Xxxxx
Notary Public, State of Texas
My Commission Expires:
[SIGNATURES TO CONTINUE ON FOLLOWING PAGE]
ASSIGNEE: AEI Net Lease Income & Growth
Fund XIX Limited Partnership,
a Minnesota limited
partnership
By: AEI Fund Management XIX, Inc.,
a Minnesota corporation,
its General Partner
By: /s/ Xxxxxx X Xxxxxxx
Xxxxxx X. Xxxxxxx,
its President
STATE OF MINNESOTA )
) ss.
COUNTY OF XXXXXX )
The foregoing was acknowledged before me this ____ day of
February, 2006, by Xxxxxx X. Xxxxxxx, in his capacity as the
President of AEI Fund Management XIX, Inc., a Minnesota
corporation, the General Partner of AEI Net Lease Income &
Growth Fund XIX Limited Partnership, a Minnesota limited
partnership, who acknowledged the execution of the foregoing
instrument to be the voluntary act and deed of said
corporation by authority of its board of directors on behalf
of the company.
[Seal] /s/ Xxxxxxxx L Shcriner
Print Name: Xxxxxxxx X Xxxxxxxx
My Commission Expires: 1/31/2010
EXHIBIT A
Legal Description
BEING A 0.689 ACRE (30,024 SQ.FT.) TRACT OF LAND MORE OR
LESS, COMPRISED OF THE APPROXIMATE NORTH HALF OF A 200.00
FT. WIDE CANAL BEING PORTIONS OF A 0.68 ACRE TRACT (VOL.
1292, XX. 000, X.X.X.X.) AND A 0.0935 ACRE TRACT (VOL. 146,
PG. 837, C.C.O.R.) AND 0.063 ACRE FROM THE SOUTH PORTION OF
LOT FIVE (5) AND ALL OF LOTS SIX (6) AND SEVEN (7), BLOCK
EIGHT (8), WINDSOR PLACE ADDITION, AN ADDITION TO THE CITY
OF HARLINGEN, CAMERON COUNTY, TEXAS, AS RECORDED IN MAP OR
PLAT THEREOF IN VOLUME 6, PAGE 21, CAMERON COUNTY MAP
RECORDS; SAID 0.689 ACRE TRACT BEING MORE PARTICULARLY
LOCATED AND DESCRIBED AS FOLLOWS;
COMMENCING AT THE A POINT ON THE WEST LINE OF A 20.00 ALLEY
SAID POINT BEING THE NORTHEAST CORNER OF LOT FIVE (5) OF
SAID WINDSOR PLACE ADDITION, THENCE ALONG THE EAST UNE OF
SAID LOT FIVE (5) AND WEST LINE OF SAID 20.00 ALLEY, DUE
SOUTH AT 27.29 FT. FOR THE NORTHEAST CORNER AND POINT OF
BEGINNING OF THIS TRACT;
THENCE, ALONG THE EAST LINE OF LOTS SIX (6) AND SEVEN (7) OF
SAID WINDSOR PLACE ADDITION, SAME BEING THE WEST LINE OF
SAID 20.00 FT. ALLEY, DUE SOUTH, A DISTANCE OF 114.63 FT. TO
A ONE-HALF INCH IRON ROD WITH AN ORANGE PLASTIC CAP STAMPED
"AMBIOTEC RPLS 5301'" SET FOR THE SOUTHEAST CORNER OF LOT
SEVEN (7) AND A CORNER OF THIS TRACT;
THENCE, NORTH 70 DEG. 22 MIN. 07 SEC. EAST, A DISTANCE OF
21.23 FT. TO A ONE-HALF INCH IRON ROD WITH AN ORANGE PLASTIC
CAP STAMPED "AMBIOTEC RPLS 5301" SET ON THE EAST LINE OF
SAID 20.00 ALLEY FOR THE SOUTHWEST CORNER OF LOT EIGHT (8)
OF SAID WINDSOR PLACE ADDITION AND A CORNER OF THIS TRACT;
THENCE, SOUTH O6 DEG. 19 MIN. 28 SEC. EAST, A DISTANCE OF
99.73 FT. FOR THE SOUTHEAST CORNER OF THIS TRACT;
THENCE ALONG THE NORTH LINE OF A 0.889 ACRE TRACT (VOL.
6328, XX. 000, X.X.X.X.), XXXXX 00 XXX. 30 MIN. 48 SEC.
WEST, A DISTANCE OF 164.80 FT. T0 A ONE-HALF INCH IRON ROD
WITH AN ORANGE PLASTIC CAP STAMPED "AMBIOTEC RPLS 5301" SET
ON THE EAST RIGHT-OF-WAY LINE OF SUNSHINE STRIP (BUS. HWY.
77) (R.O.W. VARIES) FOR THE SOUTHWEST CORNER OF THIS TRACT;
THENCE, ALONG THE EAST RIGHT-OF-WAY LINE OF SAID SUNSHINE
STRIP (BUS. HWY 77), NORTH 04 DEG. 15 MIN. 45 SEC. EAST, A
DISTANCE OF 90.00 FT. TO A ONE-HALF INCH IRON ROD WITH AN
ORANGE PLASTIC CAP STAMPED "AMBIOTEC RPLS 5301" SET ON THE
SOUTH LINE OF LOT SEVEN (7) FOR A CORNER OF THIS TRACT;
EXHIBIT A (cont'd)
Legal Description
THENCE, ALONG THE SOUTH LINE OF SAID LOT SEVEN (7), NORTH 70
DEG. 22 MIN. 07 SEC. EAST, A DISTANCE OF 0.40 FT. T0 A ONE-
HALF INCH IRON ROD WITH AN ORANGE PLASTIC CAP STAMPED
"AMBIOTEC RPLS 5301" SET ON THE EAST RIGHT-
OF-WAY LINE OF SAID SUNSHINE STRIP (BUS. HWY. 77) (R.O.W.
VARIES) FOR THE SOUTHWEST CORNER OF SAID LOT SEVEN (7), FOR
A CORNER OF THIS TRACT;
THENCE, ALONG THE EAST LINE OF SAID SUNSHINE STRIP (BUS HWY.
77) AND ALONG A CURVE TO THE LEFT WITH A RADIUS OF 11,519.16
FT., AN ARC DISTANCE OF 158.33 FT. TO AN "X" XXXX SET ON A
CONCRETE SLAB FOR THE NORTHWEST CORNER OF THIS TRACT;
THENCE, LEAVING THE EAST RIGHT-OF-WAY LINE OF SAID SUNSHINE
STRIP (BUS. HWY. 77), DUE EAST, A DISTANCE OF 120.90 FT. TO
THE POINT OF BEGINNING
CONTAINING 0.689 ACRE (30,024 SQ.FT.) OF LAND MORE OR LESS.
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made as of January
28, 2005 (the "Commencement Date"), between XXXXX-XXXXX
DEVELOPMENT-GROUP, LTD, a Texas limited partnership ("Landlord");
and ADVANCE STORES COMPANY, INCORPORATED, a Virginia corporation
("Tenant").
In consideration of their mutual covenants and other
valuable consideration, the adequacy and sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1) LEASED PREMISES. Subject to and in accordance with the terms
hereof, Landlord hereby leases to Tenant, and Tenant leases from
Landlord, the premises situated at Business Highway 77 (a.k.a.
Sunshine Strip), Cameron County, Harlingen, Texas consisting of
approximately 0.726 which is outlined in red on a survey dated
October 11, 2004 and last revised December 8, 2004, prepared by
Ambiotec Civil Engineering Group, Inc. (the "Survey"), which
Survey is attached hereto as Exhibit "A" and is incorporated
herein by this reference (together with all appurtenances,
rights, interest, easements and privileges in any way pertaining
thereto, the '~"), together with the improvements to be
constructed on the Land by Landlord pursuant to this Lease, such
improvements to consist of a building space of approximately
7,000 square feet of gross leasable floor area (the "Building")
and the surrounding parking, landscape and sidewalk areas
(including any and all striping of such parking areas)
(collectively, the "Other Improvements"), all as identified on
the site plan attached hereto as Exhibit "B" Attachment 1 and
incorporated herein by this reference (the "Site Plan"). The
Land, the Building and the Other Improvements, together with the
"Tenant's Improvements" (as hereinafter defined), if any, shal1
hereinafter be collectively referred to as the "Leased Premises."
2) CONSTRUCTION OF LEASED PREMISES. Landlord shall, at its sole
cost and expense, perform the "Work" (as defined in the
Construction Provisions) in accordance with the construction
provisions attached hereto as Exhibit "B" (the "Construction
Provisions").
3) Use
a) Tenant may use the Leased Premises for the display,
storage and sale of automotive parts, accessories, supplies
and/or maintenance items or for any and al1 other lawful
uses; provided, however, in no event shall the Leased
Premises be used for any of the following (collectively, the
"Prohibited Uses"):
i) trailer court, junk yard, waste material
collection facility , or auction house;
ii) establishments providing adult-type entertainment
or displays of a variety involving or depicting nudity
or lewd acts;
iii) a massage parlor;
iv) a funeral home;
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v) a facility for the sale of paraphernalia for use
with illicit drugs;
vi) a facility for the sale or display of pornographic
(as determined by community standards for the area in
which the Leased Premises is located) material;
vii) overnight parking of campers, mobile homes,
boats or tractor trailers, except for such trailers as
are a part of Tenant's business operations;
viii) any exploration, drilling or similar
operation of any kind;
ix) dance hall, bar, restaurant, off-track betting
business, billiard or pool hall, bingo or similar games
of chance, game arcade, nightclub or flea market;
x) any use which involves the raising, breeding or
keeping of any animals or poultry;
xi) any dangerous or unsafe uses;
xii) any industrial uses, including, without
limitation any manufacturing, smelting, rendering,
brewing, refining, chemical manufacturing or
processing, or other manufacturing uses;
xiii) any mining or mineral exploration or
development except by non-surface means;
xiv) drug or alcohol rehabilitation or treatment
center; xv) abortion clinic; or
xvi) any place of religious worship such as a
church, temple, synagogue,
mosque, or the like.
b) Tenant may operate its business at the Leased Premises under
any name of its choosing or permitted by law and may set its
hours and days of operation if any, in its sole discretion.
Notwithstanding anything contained herein to the contrary, (i)
nothing in this Lease shall constitute an agreement of Tenant
(express or implied), directly or indirectly, to open or operate
a business in the Leased Premises, the rentals received hereunder
constituting the entire consideration for Landlord's entering
into this Lease, and (ii) Tenant may, at any time during the
"Term" (as hereinafter defined), without Landlord's consent,
cease business operations at and/or remove any and all of
Tenant's "Personal Property" (as hereinafter defined) from the
Leased Premises.
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I
4) TERM/EXTENSIONS.
a) The initial term of this Lease (the "Initial Term")
shall commence on the Commencement Date and shall terminate
on the last day of the month in which occurs the fifteenth
(15th) annual anniversary of the "Rent Commencement Date"
(as hereinafter defined)')'The Rent Commencement Date shall
be the earlier to occur of (i) the date that is forty-five
(45) days following the "Completion Date" (as defined in the
Construction Provisions) or (ii) the date on which Tenant
opens for business to the public at the Leased Premises.
Notwithstanding the foregoing, in the event the following
conditions have not been satisfied prior to such Rent
Commencement Date, then Tenant may, at Tenant's option, pay
no Basic Rent or any other charges due under this Lease to
Landlord until such time as such conditions have been
satisfied or waived (whereupon Tenant shall pay all accrued
Basic Rent and/or other charges due hereunder at the time of
such satisfaction or waiver):
(i) Landlord has delivered to Tenant all applicable
subordination, non- disturbance and attornment
agreements executed by any and all Mortgagees and/or
Ground Lessors with respect to the Leased Premises in
the form attached to this Lease as Exhibit "C" and
(ii) Landlord has delivered to Tenant, and Tenant has
approved, those certain easement agreements,
declarations, covenants, restrictions, rules,
regulations and other documents or agreements affecting
the Leased Premises set forth in Exhibit "H" as
Permitted Encumbrances, and Landlord has placed of
record and delivered a certified copy to Tenant of all
such agreements and documents.
Landlord and Tenant shall confirm the Rent Commencement Date
by a supplemental commencement date agreement, the form of
which agreement is attached hereto as Exhibit '"D". The
period of time from the Commencement Date until the Rent
Commencement Date shall hereinafter be referred to as the
"Construction Term. "
b) In addition to the Initial Tern1, Tenant shall have the
option (each such right referred to herein as a "Renewal
Option") to renew and extend this Lease for three (3)
consecutive five (5) year periods (each such period referred
to as an "Option Period" and collectively as the "Option
Periods") immediately following the Initial Term, during
which Option Period(s) all the provisions, conditions and
covenants of this Lease shall continue in full force and
effect except that "Basic Rent" (as hereinafter defined)
payable for the Option Period(s) shall be as set forth in
Section 5(a) of this Lease. Each Renewal Option shall be
deemed exercised automatically unless Tenant shall give
Landlord written notice of its election not to exercise any
such Renewal Option at least one hundred eighty (180) days
prior to the expiration of the Initial Term or any then-
current Option Period, as applicable.
c) From and after the date on which a Renewal Option is
exercised, references to the words "Term" in this Lease
shall include the Option Period(s) by which the Term shall
have been extended. In the event this Lease is canceled or
terminated, the expiration date
3
of this Lease shall be that date on which this Lease is
canceled or tern1inated. The term "Lease Year" shall mean
each successive period of twelve (12) consecutive calendar
months, commencing on the anniversary of the Rent
Commencement Date, except that the first Lease Year shall
commence on the Rent Commencement Date.
5) RENT.
a) Basic Rent. Commencing on the Rent Commencement Date,
during each Lease Year, Tenant shall pay Landlord the
following monthly sums ("Basic Rent") which shall be
payable, in advance, on the first day of each month:
Initial Term:
Years 1-10 $9,267.50 per month
Years 11-15 $10,194.25 per month
First Option Period $10,704.00 per month
Second Option Period $11,239.17 per month
Third Option Period $11,801.08 per month
If the Rent Commencement Date shall be a day other than the
first day of a month, the amount of Basic Rent shall be
prorated for the balance of such month on a per diem basis,
and the prorated Basic Rent for such month shall be due and
payable on the Rent Commencement Date.
b) Tenant shall have no obligation to pay Basic Rent or
any other charges due under this Lease to any party other
than Landlord unless and until Tenant has received notice of
a change given pursuant to Section 24 below. In the event
such notice is given in connection with a transfer or sale
of Landlord's interest in the Leased Premises and/or this
Lease, such notice shall not be binding upon Tenant until
Tenant has received (i) a copy of the instrument assigning
or transferring Landlord's interest, (ii) a letter
specifying the addresses to which rent and notices are to be
forwarded to such assignee or transferee and (ii) a W -9
form executed by the assignee or transferee. The instrument
assigning or transferring Landlord's interest shall evidence
the fact that such assignee or transferee has assumed all of
Landlord's obligations under this Lease and has acquired
sufficient title to the Leased Premises to enable such
assignee or transferee to perform such obligations;
provided, however, this provision shall not be applicable to
any transfer given as security for a loan, and no transfer
shall release a prior Landlord from any liability hereunder
that accrued during the period of such prior Landlord's
ownership of the Leased Premises.
6) W ARRANTIES,
a) Landlord warrants and represents that, as of the
Commencement Date and during the Term:
i) Landlord (1) is a limited par1nership duly formed,
validly existing and in good standing under the law of
the State of Texas, (2) is qualified to do business
4
in and is in good standing under the laws of the State
of Texas in which the Land is located (the "~"), and
(3) has full right and power to execute and perform
this Lease and to grant the estate demised herein;
Landlord's General Partner, DSL Management, L.L.C., a
Texas limited liability company ("General Partner"),
who is acting as its signatory for this Lease, is duly
authorized and empowered to act for and on behalf of
the General Partner, and this Lease, including its
execution by Landlord, is enforceable and binding upon
Landlord and has been authorized by all requisite
action on behalf of the General Partner. General
Partner (i) is a limited liability company duly formed,
validly existing and in good standing under the law of
the State of Texas, (2) is qualified to do business in
and is in good standing under the laws of the State of
Texas in which the Land is located (the "~"), and (3)
has full right and power to execute and perform this
Lease and to grant the estate demised herein; General
Partner's President, who is acting as General Partner's
signatory for this Lease is duly authorized and
empowered to act for and on behalf of General Partner.
Upon request by Tenant, Landlord shall furnish to
Tenant (i) written evidence of Landlord's authority to
complete this transaction and empowering those
executing documents on Landlord's behalf to do so and
(ii) Landlord's certificate of good standing in the
State;
ii) Landlord is either currently the owner of the Land
in fee simple absolute or will become such owner; this
Lease is and shall be a first lien on the Leased
Premises subject only to any "Mortgage" (as hereinafter
defined) or "Ground Lease" (as hereinafter defined) to
which this Lease may be subordinated as set forth in
Section 20 below; and neither the "Permitted
Encumbrances" (as hereinafter defined) nor any other
encumbrances grant any other party the rights to use
any parking spaces located on the Leased Premises;
iii) Neither the execution and delivery by
Landlord of this Lease nor the performance by Landlord
of the terms hereof will (x) conflict with or- violate
any other agreement or instrument or any writ, order or
decree to which Landlord is a party or by which
Landlord is bound or (y) be precluded by or cause a
breach of any agreement, mortgage, contract or other
instrument or document to which Landlord is a party or
which encumbers or otherwise adversely affects the
Leased Premises; and
iv} This Lease represents the valid, binding
obligation of Landlord, enforceable against Landlord in
accordance with its terms.
b} Landlord warrants and represents t11at, as of the
Commencement Date:
i) The Leased Premises is presently, or will be prior
to commencement of the Work, properly subdivided in
compliance with all applicable laws and regulations and
constitutes a tax parcel separate from any other real
property; the zoning classification of, and all other
governmental regulations pertaining to, the Leased
Premises shall permit the construction by Landlord as
provided by this
5
Lease and the use of the Leased Premises by Tenant in
accordance with the terms of this Lease; and the number
of parking spaces totaling thirty-four (34) spaces as
shown on the Site Plan shall be provided in the parking
area;
ii) Landlord's fee simple interest in the Leased
Premises is free and clear of any mortgages deeds,
encumbrances, declarations easements, agreements,
leases, tenancies, restrictions, rules or regulations
which affect or restrict or could affect or restrict
the use or intended use of the Leased Premises by
Tenant, its employees, customers, invitees, successors
and/or assigns, except those matters set forth on
Exhibit "H" attached hereto and entitled "Permitted
Encumbrances" (the "Permitted Encumbrances"); and
iii) The execution and delivery of this Lease by
Landlord has been duly authorized by all required
corporate action.
c) Tenant represents and warrants to Landlord that:
i) Tenant (I) is a corporation duly formed, validly
existing and in good standing under the law of the
Commonwealth of Virginia and (2) is qualified to do business
in and is in good standing under the laws of the State;
ii) Neither the execution by Tenant of this Lease nor
the performance by Tenant of the terms hereof win
conflict with or violate any other agreement or
instrument or any writ, order or decree to which Tenant
is a party or by which Tenant is bound; and
iii) The execution and delivery of this Lease by
Tenant has been duly authorized by all required
corporate action, and this Lease represents the valid,
binding obligation of Tenant, enforceable against
Tenant in accordance with its terms.
7) TENANT'S FURNISHINGS FIXTURES EQUIPMENT AND OTHER PERSONAL
PROPERTY. Tenant, at its sole cost and expense, may supply and
install anywhere in or on the Leased Premises any furnishings,
fixtures, equipment and/or other personal property, including a
satellite dish and any necessary cables or supporting equipment
(collectively, "Personal Property"), which it deems necessary for
its use of the Leased Premises; provided, however, that Tenant
shall repair, at its own expense, any damage to the Leased
Premises occasioned by such installation. Landlord and Tenant
recognize that Tenant may commence the installation of its
Personal Property prior to the Completion Date, as defined in the
Construction Provisions. Any such Personal Property supplied and
installed in the Leased Premises, except that which is
permanently attached, shall be and remain the property of Tenant
Such delivery, installation -and placement of Personal Property
in the Leased Premises by Tenant shall not constitute final
acceptance or actual possession of the Leased Premises by Tenant,
and shall not obligate Tenant to pay Basic Rent or other charges
prior to the Rent Commencement Date set forth in Section 4(b) of
this Lease. It is agreed by Landlord and Tenant that upon and
during delivery of such
6
Personal Property by Tenant, Landlord shall provide Tenant with a
secure structure and access to the Leased Premises.
Any damage to the Leased Premises occasioned by the removal of
such Personal Property shall be repaired by Tenant at its sole
cost and expense, unless such damage is caused by Landlord's
negligence, intentional misconduct, or ,willful acts, or the
negligence, intentional misconduct, or willful acts of Landlord's
agents or contractors, in which event such damage shall be
repaired by Landlord at its sole cost and expense. Risk of loss
as to such Personal Property shall remain with Tenant at all
times prior to and during the Term. Tenant shall indemnify,
defend, and save Landlord harmless from and against all claims,
suits, liabilities and expenses, including reasonable attorneys'
fees, for damage or injury to persons or property directly
resulting from Tenant's negligent installation of Personal
Property in the Leased Premises, except to the extent that such
claim, suit, liability or expense is caused, in whole or in part,
by Landlord's negligence, intentional misconduct, or willful
acts, or the negligence, intentional misconduct, or willful acts
of Landlord's employees, agents or contractors.
8) TENANT'S ALTERATIONS AND SIGNS.
a) Tenant shall have the right, but not the obligation, at
its sole cost and expense and at any time, without
Landlord's consent, to make non-structural improvements,
alterations and replacements in, on or to the Leased
Premises. Tenant agrees that such improvements, alterations,
additions and replacements will (i) be made in a good and
workmanlike manner by licensed contractors and (ii) comply
with all applicable laws, and Tenant shall defend, indemnify
and hold Landlord haIm1ess from any and all costs, damages
and expenses resulting therefrom except to the extent that
such costs, damages or expenses are caused by Landlord's
negligence, intentional misconduct, or acts or omissions, or
the negligence, intentional misconduct, or acts or omissions
of Landlord's agents or contractors. Tenant shall not make
any structural improvements, alterations, additions or
replacements without first obtaining Landlord's written
consent thereto, which consent shall not be unreasonably
withheld, conditioned or delayed. If Landlord's consent is
required and if plans and specifications for such work must
be prepared in order for Tenant to obtain a building permit
for such work. then conceptual plans and specifications for
such work shall be provided to Landlord prior to
commencement of any such work. Landlord shall be deemed to
have consented to such work if written notice of disapproval
with reasons specified, is not received by Tenant within
fifteen (15) days following Tenant's delivery of such plans
and specifications to Landlord. Without cost or expense to
Landlord, Landlord shall cooperate with Tenant in Tenant's
efforts to obtain any and all licenses, building permits,
certificates of occupancy or other governmental approvals
which may be required in connection with any such
improvements, alterations, additions and replacements, and
Landlord shall execute, acknowledge and deliver any
documents reasonably required in furtherance of such
purposes.
b) Tenant may erect, at its cost and in its sole
discretion all announcement sign on the Leased Premises, the
location, size and style of which shall be in Tenant's sole
and
7
absolute discretion, announcing Tenant's future business at
the Leased Premises. Tenant may, at its cost and in its sole
discretion, but subject to compliance with all applicable
governmental regulations, install (1) any and all exterior
signs on the exterior walls and/or roof of the Leased
Premises as it deems necessary and (2) any and all pylon or
monument signs on the Leased Premises as it deems necessary
Tenant's ability to erect at the Leased Premises no less
than 103.12 square feet of exterior signage in the color(s
), size(s) and location(s) shown on Exhibit B, Attachment II
(the "Elevations") and Exhibit "I-1" and no less than a 108
square foot pylon sign in the color(s), size(s) and
location(s) shown in Exhibit "I-2" attached hereto and on
the Site Plan is a condition precedent to its obligations
under this Lease and, in that regard, Tenant shall apply for
all necessary governmental permits for its desired signage
within a reasonable period of time after the Commencement
Date of this Lease and shall reasonably diligently pursue
such application thereafter. In the event Tenant does not
receive all necessary governmental permits for Tenant's
desired signage by the date Landlord has received the
"Approvals" (as defined in Section 3(a) of the Construction
Provisions), Tenant, at its option, may terminate this Lease
by giving written notice to Landlord. If local laws do not
permit the signage that Tenant desires to erect, then Tenant
may, at its expense, seek a sign code variance to allow
Tenant's signage. Landlord shall execute any documents,
forms or applications necessary for Tenant to obtain all
necessary zoning approvals, variances or special exceptions
for any and all of Tenant's signage and shall promptly
execute all documents required in connection therewith.
Notwithstanding anything contained herein to the contrary,
Tenant shall be entitled, without Landlord's consent, but
subject to compliance with all applicable governmental
regulations, to replace any and all of its signs with
signage consistent with Tenant's then-current prototypical
sign plans. In the event of an assignment or subletting as a
result of which Tenant is no longer occupying any portion of
the Leased Premises, Tenant's signs may be replaced by signs
identifying the appropriate assignee or subtenant, provided
that the specific design of such signage shall be subject to
Landlord's consent, which consent shall not be unreasonably
withheld, conditioned or delayed.
c) Any alterations made by Tenant to the Leased Premises
shall hereinafter be referred to as the "Tenant's
Improvements." Except for Tenant's Personal Property, the
Tenant's Improvements that are permanently attached or
affixed to the Leased Premises shall become the property of
Landlord upon the expiration of this Lease.
9) ASSIGNMENT AND SUBLEASING. Tenant shall have the right to
sublet, assign, transfer, reassign and grant concessions or
licenses (a "Transfer") in all or any part of the Leased Premises
and any of Tenant's rights and obligations under this Lease,
without Landlord's consent In the event of such a Transfer,
Tenant shall remain liable for all of Tenant's obligations to
Landlord arising hereunder so long as this Lease is not changed,
modified or amended in any respect by Landlord and any
transferee. Should Tenant wish to be relieved of its obligations
hereunder upon a Transfer, Landlord's prior consent to a Transfer
shall be required, which consent shall not be unreasonably
withheld, conditioned or delayed. Notwithstanding the immediately
preceding sentence, in the event any assignee hereunder or
assignee's guarantor subsequent to an assignment has a net worth
calculated in accordance with generally accepted accounting
principles equal to or greater than the net worth of Advance
Stores Company,
8
Incorporated, as of the end of the fiscal year in which the
Commencement Date of this Lease occurs, Landlord's consent to
such assignment shall not be necessary, and Tenant shall
thereafter automatically (and without any action by Landlord) be
relieved of any further obligations under this Lease. Landlord
acknowledges and agrees that Landlord's conditioning of the
granting of its consent upon obtaining (i) a material amendment
or modification to the terms of this Lease or (ii) monetary
compensation, shall be deemed unreasonable. In the event Tenant
shall be reorganized, merged or consolidated with any other
corporation, limited liability company or other business entity,
or shall sell all or substantially all of its assets, any
resulting or surviving corporation, limited liability company or
other business entity, or any other person, which shall, as a
result of such reorganization, merger, consolidation or sale,
succeed to substantially all of the assets or the business of
Tenant, and which shall assume all of the liabilities and
obligations of Tenant under this Lease, shall automatically and
without the necessity of further assignment or any other act
become and be Tenant under this Lease in accordance with and
subject to all of the terms, provisions and conditions hereof.
Tenant shall give Landlord notice of any Transfer, such notice to
include a copy of the original instrument evidencing such
Transfer; provided, however, that Tenant's failure to provide
such notice shall not be an "Event of Default" (as hereinafter
defined) by Tenant hereunder or give Landlord the right to
exercise any right or remedy against Tenant hereunder.
10) MAINTENANCE AND REPAIRS:
a) Subject to Landlord's repair and restoration
obligations described in Sections 10(b) and 14 below, Tenant
shall, at its cost, during the Term (excluding the
Construction Term):
i) Maintain, repair and/or replace, in good condition,
ordinary wear and tear excepted, each and every portion of
the Leased Premises (including, without limitation, all
exterior signs related to safety required by law [including
handicapped parking signs and fire lane signs] and the
exterior of the Building) except for any items the
maintenance, repair or replacement of which are Landlord's
responsibility hereunder; and
ii) Keep the Leased Premises in a reasonably clean and neat
condition and not permit the accumulation of any trash
rubbish or garbage (except as accumulated in containers
awaiting collection or disposal) in, on or about any part of
the Leased Premises and arrange for collection or disposal
of accumulated trash, rubbish and garbage from the Leased
Premises.
b) Notwithstanding the provisions of Section 10(a) above and
anything contained herein to the contrary , Landlord shall be
responsible, at its sole cost and expense, for the following
maintenance, repairs and/or replacements to the Leased Premises
during the Term:
i) any and all maintenance, repairs and/or replacements to
the slab, foundation and structure of the Leased Premises
(including, without limitation, repairing any cracks or
other damage thereto, but specifically excluding painting
9
of the exterior walls unless painting is required as a
result of Landlord's failure to maintain, repair and/or
replace the slab, foundation or structure as provided
herein);
ii) any and all maintenance, repairs and/or replacements to
the parking area of the Leased Premises in the event that
Landlord fails to deliver the Certificate as to the parking
area of the Leased Premises as required by Section 2(c) of
the Construction Provisions or fails to construct the
parking area in accordance with the design standards
therefor as required by Section 2(b ) of the Construction
Provisions;
iii) any and all maintenance, repairs and/or
replacements to the roof of the Leased Premises, in the
event that Landlord fails to deliver the certificates and
warranties as to the roof of the Leased Premises required by
Section 2(e) of the Construction Provisions;
iv) any and all maintenance, repairs and/or replacements to
the heating, ventilation and air-conditioning system of the
Leased Premises (the "HVAC"), in the event that Landlord
fails to deliver the certificates as to the HV AC as
required by Section 2(t) of the Construction Provisions;
v) any and all maintenance, repairs or replacements which
become necessary as a result of Landlord's negligence,
intentional misconduct, or acts or omissions, or the
negligence, intentional misconduct, or acts or omissions of
Landlord's agents or contractors; and
vi) any and all maintenance, repairs and/or replacements to
the Leased Premises which (i) are required during the first
Lease Year of the Term due to the original construction of
the Leased Premises or (ii) are made necessary by reason of
defects in the workmanship or materials used in the
construction of any portion of the Leased Premises (except
for any portion of the Leased Premises that was constructed
by Tenant) or are due to the settling of the Leased
Premises.
c) With regard to those items which are Landlord's
responsibility under Section 10(b) above, if an emergency
situation occurs, Tenant shall make all reasonable efforts to
contact Landlord by telephone or facsimile to advise Landlord of
the need for such maintenance, repair or replacement. If after
making reasonable efforts to contact Landlord either Tenant is
unable to contact Landlord or if Tenant succeeds in contacting
Landlord and Landlord fails to undertake action to correct the
emergency situation within twenty-four (24) hours, Tenant may
perform such maintenance, repair or replacement as Tenant deems
necessary .Within thirty (30) days after written notice from
Tenant (accompanied by an invoice or other reasonable evidence of
the costs to be reimbursed), Landlord shall pay Tenant an amount
equal to the actual, out-of-pocket costs incurred by Tenant in
the performance of such maintenance, repair and/or replacement.
If Landlord fails to pay to Tenant such costs within such thirty
(30) day period then Tenant may deduct the amount of such costs
from Basic Rent and any other
10
charges owed by Tenant to Landlord. For purposes of this Section
10(c), an "emergency situation" means a condition or state of
facts which if not corrected would result in further damage to
the Leased Premises or its contents or personal injury or damage
to any other property or which would in any way prevent Tenant
from conducting its business at the Leased Premises in its
customary manner. The provisions of this Section 10(c) shall
control over any conflicting provisions contained in this Lease.
d) Landlord shall protect, defend, indemnify and hold Tenant
harmless from all losses, damages, liabilities, costs and
expenses (including reasonable attorneys' fees and court costs)
incurred for work, labor, repairs, alterations, improvements,
services and/or materials supplied to the Leased Premises by or
at the direction of Landlord, or which may occur, result from or
arise out of the failure of Landlord during the Term to make
properly any required repairs or perform any maintenance which is
the responsibility of Landlord under this Lease, except to the
extent that such losses, damages, liabilities, costs and/or
expenses arise out of Tenant's negligence, intentional
misconduct, or acts or omissions, or the negligence, intentional
misconduct, or acts or omissions of Tenant's agents or
contractors. Tenant shall protect, defend, indemnify and hold
Landlord harmless from all losses, damages, liabilities, costs
and expenses (including reasonable attorneys' fees and court
costs) incurred for work, labor, repairs, alterations,
improvements, services and/or materials supplied to the Leased
Premises by or at the direction of Tenant, or which may occur,
result from or arise out of the failure of Tenant during the Term
to make properly any required repairs or perform any maintenance
which is the responsibility of Tenant under this Lease, except to
the extent that such losses, damages, liabilities, costs and/or
expenses arise out of Landlord's negligence, intentional
misconduct, or acts or omissions, or the negligence, intentional
misconduct, or acts or omissions of Landlord's agents or
contractors.
e) Landlord hereby assigns to Tenant all of Landlord's interest
in, and rights under (including rights to enforce), all
warranties and guaranties received in connection with the Work or
any other work, maintenance, repairs and/or replacements
performed by, or at the direction of, Landlord in, on or at the
Leased Premises; provided, however, that Landlord shall retain
such interest in and rights under such warranties and guaranties
as are necessary or desirable for Landlord to complete any
maintenance, repairs and/or replacements to the Leased Premises
which (i) are required during the first Lease Year of the Term
due to the original construction of the Leased Premises or (ii)
are made necessary by reason of defects in the workmanship or
materials used in the construction of any portion of the Leased
Premises (except for any portion of the Leased Premises that was
constructed by Tenant) or are due to the settling of the Leased
Premises, as provided in Section 1O(b)(vi) above.
11) UTILITIES. Tenant agrees to pay the charges and all required
deposits for all utility services furnished to and used by Tenant
in the Leased Premises during the Term directly to the utility
companies providing such services, excluding any -and all
connection fees, hook-up charges, impact fees and other similar
costs related to the initial start-up expenses for providing such
services to the Leased Premises, all of which costs and expenses
shall be paid by Landlord.
11
Subject to applicable law, Tenant shall be entitled to select the
utility service provider which shall provide water, electric,
gas, cable and telecommunication services to the Leased Premises.
12) INSURANCE: INDEMNIFICATION.
a) During the Term (excluding the Construction Term),
Tenant shall, at its sole cost and expense, obtain and
maintain property insurance covering the Leased Premises in
an amount not less than the full replacement cost thereof,
with such deductibles and retentions as determined by Tenant
in its sole and absolute discretion. Such insurance shall
be provided by companies authorized to do business in the
State.
b) During the Term (excluding the Construction Term)
Tenant shall maintain with respect to the Leased Premises a
policy of commercial general liability insurance, which
insurance shall stipulate limits of liability of not less
than $2,000,000 each occurrence, single limit bodily injury
and/or property damage combined (with such deductibles and
retentions as determined by Tenant in its sole and absolute
discretion), and shall be provided by companies authorized
to do business in the State. .
c) Tenant shall, within fifteen (15) days after receipt of
written request therefor by Landlord, provide Landlord with
(i) evidence of such property insurance and (ii) a
certificate of such commercial general liability insurance,
each naming Landlord and Landlord's Mortgagee as additional
insureds or loss payees, as applicable, and providing that
the applicable coverage shall not be cancelled without
thirty (30) days notice to the holder of such evidence or
certificate, as applicable.
d) Notwithstanding anything to the contrary contained
herein, Tenant shall have the right to self-insure against
any of the risks or portions thereof set forth in this
Section 12, provided Tenant then has a reported net worth
(calculated in accordance with generally accepted accounting
principles), as of the end of Tenant's most recent quarterly
reporting period, of not less than One Hundred Million
Dollars ($100,000,000).
e) Landlord shall maintain with respect to the Leased
Premises a policy of commercial general liability insurance,
which insurance shall stipulate limits of liability of not
less than $2,000,000 each occurrence, single limit bodily
injury and/or property damage combined, and shall be
provided by companies authorized to do business in the
State. Such policies of insurance shall name Tenant as an
additional insured. Landlord shall, within a reasonable
period of time after receipt of written request therefor by
Tenant, provide a certificate of such commercial general
liability insurance evidencing Tenant as an additional
insured on such policy and providing that the applicable
coverage shall not be cancelled or modified without thirty
(30) days notice to the holder of such certificate.
f) During any period in which Landlord or Tenant is
conducting construction activities at, in or on the Leased
Premises, such party shall keep, or cause its general
contractor to keep, in full force and effect, with regard to
the Leased Premises, in form
12
reasonably acceptable to the other party , at least the
minimum insurance coverages set forth below:
i) Worker's Compensation -Statutory Limits; Employers
Liability - $2,000,000;
ii) Automobile Liability for all vehicles with limits
of $1,000,000; and
iii) Commercial General Liability to include
premises operations and products/completed operations
coverage with limits of $3,000,000.
Additionally, such party shall keep or require its
general contractor to keep in full force and effect a policy
of builder's risk insurance covering loss or damage to the
Leased Premises for the full replacement cost of all such
construction. To the fullest extent the other party has an
insurable interest, such liability policy shall name the
other party as an additional insured and such builder's risk
policy shall name the other party as a loss payee.
g) Any insurance coverage enumerated in this Lease may be
effected by a blanket policy or policies of insurance or
under so-called "multi-peril" or "package" insurance
policies, provided that the total amount of insurance
available with respect to the Leased Premises and Tenant's
or Landlord's liability hereunder shall be at least the
equivalent of separate policies in the amounts herein
required, and provided further that in other respects any
such policy or policies shall comply with the provisions of
this Lease. Landlord shall not be entitled to self -insure
ally of the insurance coverages recited herein. An
"umbrella" policy may be provided and utilized by either
party to increase the limit provided by any individual or
blanket policies in lower amounts, and the combined
occurrence and aggregate limits provided by all such
policies with respect to the Leased Premises and Tenant's or
Landlord's liability hereunder shall be satisfactory
provided that the terms and conditions of such policies
otherwise comply with the provisions of this Lease.
h) Notwithstanding anything to the contrary contained
herein, Landlord and Tenant hereby release each other, to
the extent of their agreed-upon insurance coverage, from any
and all liability for any loss or damage caused by fire or
any other casualty insured against, even if such fire or
other casualty shall be brought about by the fault or
negligence of the other party, or any persons claiming under
such other party.
i) Landlord hereby agrees to exonerate, protect, defend,
indemnify and hold Tenant and its officers, directors,
stockholders, members, beneficiaries, partners,
representatives, agents and employees harmless from and
against any and all losses, damages, claims, suits or
actions, judgments and costs (including reasonable
attorneys' fees) arising out of any injury to or death of
persons or damage to property on or about the Leased
Premises caused by the intentional or negligent acts or
omissions of Landlord or its employees, agents or
contractors. Tenant agrees to exonerate, protect, defend,
indemnify and hold Landlord and its officers, directors,
stockholders, members, beneficiaries, partners,
13
representatives, agents and employees harmless from and
against any and all losses, damages, claims, suits or
actions, judgments and costs (including reasonably
attorneys' fees) arising out of any injury to or death of
persons or damage to property on or about the Leased
Premises caused by the intentional or negligent acts or
omissions of Tenant or its employees, agents or contractors.
13) REAL ESTATE TAXES.
a) Commencing on the Rent Commencement Date, during the
Term, Tenant shall reimburse Landlord for all '"Real Estate
Taxes" (as hereinafter defined). If the Rent Commencement
Date occurs or 1he Term terminates during any part of a
calendar year, Tenant shall be responsible for such Real
Estate Taxes for only that portion of the calendar year for
which Tenant is responsible to pay Basic Rent hereunder.
However, the amount of Real Estate Taxes attributable to the
Leased Premises for which Tenant shall reimburse Landlord in
part shall be less any abatements, discounts or refunds
thereon. In paying such Real Estate Taxes, Landlord agrees
to take full advantage of any and all available discounts,
and Tenant shall not be obligated to pay any portion of any
penalty or interest for delinquent payment, nor shall Tenant
be obligated to pay any portion of sums owed by Landlord due
to failure of Landlord to take advantage of any discount.
Tenant shall reimburse Landlord for such Real Estate Taxes
within thirty (30) days of receipt from Landlord of a
receipted tax xxxx (or in the alternative copy of the tax
xxxx and a copy of Landlord's check to the appropriate
governmental agency or authority) evidencing Landlord's
payment thereof to the taxing authority.
b) Tenant shall have the right, at Tenant's sole expense,
to contest the amount or validity, or otherwise seek an
exemption or abatement, of any Real Estate Taxes or to seek
a reduction in the valuation of the Leased Premises assessed
for purposes of Real Estate Taxes by appropriate proceedings
diligently conducted in good faith, provided that (i) Tenant
shall first have notified Landlord in writing of its intent
to do so and (ii) such contest will not result in the
foreclosure, loss or forfeiture of the Leased Premises, or
any portion thereof In any instance where any such action or
proceeding is being undertaken by Tenant, Landlord shall (i)
cooperate with Tenant, (ii) execute any and all documents
required in connection therewitl1 and (iii) if required by
any law, rule or regulation of the taxing authority, shall
join with Tenant in the prosecution thereof Upon the
termination of the proceedings set forth above (unless the
taxing authority requires that Real Estate Taxes be paid
under protest prior to commencement of such proceedings),
Tenant shall pay the applicable Real Estate Taxes as finally
determined in such proceedings, the payment or partial
payment of which may have been deferred during the
prosecution of such proceedings. Tenant shall be entitled to
a refund of any overpayment of Real Estate Taxes relating or
allocable to the Leased Premises, as well as a reimbursement
from the appropriate taxing authority of all costs, fees and
expenses it incurs in such protest or reassessment
c) For purposes of this Lease, the term '"Real Estate
Taxes" shall mean all general real estate taxes and
assessments and other ad valorem taxes, rates and levies
paid upon or with respect to the Leased Premises for a
calendar year or a portion thereof to any
14
governmental agency or authority and all charges
specifically imposed in lieu of any such taxes, but
specifically excluding "roll-back" taxes or other similar
land use charges. Nothing contained in this Lease shall
require Tenant to pay any local, county, municipal, state or
federal income, franchise, corporate, estate, inheritance,
succession, capital levy, business or transfer tax of
Landlord, or any local, county, municipal, state or federal
income, profits, gross receipts, sales or renewal tax or
charge upon the rent or other charges payable by Tenant
under this Lease-
d) Landlord and Tenant understand and acknowledge that certain
credits, exemptions, refunds or abatements against tax
obligations of Tenant and/or Landlord, whether with respect
to Real Estate Taxes, personal property taxes, sales taxes,
use taxes, gross receipts taxes, income taxes, payroll
taxes, value added taxes or other taxes (collectively, "tax
benefits"), as well as incentive payments or credits
directly or indirectly from governmental authorities
("incentive payments") may become available as a result of
the construction, use, occupancy or conduct of Tenant's
business at the Leased Premises, or the decision of Tenant
to establish and/or operate a business at the Leased
Premises. The full amount of such tax benefits and incentive
payments shall be the property of Tenant. In the event that
any such tax benefit or incentive payment is -paid to,
accrues to the benefit of, or is otherwise received by
Landlord, at Tenant's option:
i) Landlord shall immediately account for and pay
over the full amount of such tax benefit or incentive
payment to Tenant; or
ii) Tenant may offset the full amount of such tax
benefit or incentive payment against Basic Rent and any
other charges payable by Tenant to Landlord hereunder.
Landlord shall cooperate with Tenant and execute any
documents, forms, or applications as reasonably requested by
Tenant in order to enable Tenant to obtain any tax benefits
or incentive payments directly available to Tenant.
14) DAMAGE OR DESTRUCTION.
a) If, during the Term, a fire or other casualty shall
render the whole or any portion of the Leased Premises
untenantable, in Tenant's reasonable judgment, and if, in
Tenant's reasonable judgment, the Leased Premises can
reasonably be expected to be restored to substantially the
same condition existing immediately prior to such casualty
within one hundred eighty (180) days from the date of such
casualty, Landlord shall repair and restore the Leased
Premises to substantially the same condition existing
immediately prior to such casualty within such one hundred
eighty (180) day period (subject to any delays caused by a
"Force Majeure Event" [as hereinafter defined]. In the event
that Landlord timely completes such repair and/or
restoration, this Lease shall remain in full force and
effect. During the period during which such repair and/or
restoration is being performed, rent otherwise payable
hereunder shall xxxxx in the proportion that the area of the
Leased Premises rendered untenantable bears to the entire
15
area of the Leased Premises until the Leased Premises is
completely restored, repaired, or replaced to the
satisfaction of Tenant; provided, however, that no rent
shall be payable for any portion of the Leased Premises
unless Tenant is able to conduct its usual business on that
portion of the Leased Premises that remains tenantable. In
the event that Landlord shall undertake to perform such
repair and restoration of the Leased Premises, Tenant shall,
prior to Landlord commencing such repair and restoration,
pay Landlord with (i) all insurance proceeds and (ii) the
amount of the difference between the insurance proceeds and
the full replacement cost of the Leased Premises.
b) If, during the Term, a fire or other casualty shall
render the whole or any portion of the Leased Premises
untenantable, in Tenant's reasonable judgment, and if, in
Tenant's reasonable judgment, the Leased Premises cannot
reasonably be expected to be repaired and restored within
one hundred eighty (180) days from the date of such
casualty, then Tenant may, by written notice to Landlord
sent within sixty (60) days from the date of such casualty ,
terminate this Lease, which termination shall be effective
as of the date of such casualty.
c) If any such fire or other casualty which renders the
whole or any portion of the Leased Premises untenantable
occurs during the final Lease Year of the Initial Term or of
any Option Period, Tenant may, within thirty (30) days after
the date of such casualty, give written notice to Landlord
of Tenant's intention to extend the Term pursuant to the
next applicable Renewal Option provided for in Section 3 of
this Lease, in which event Landlord shall be obligated to
repair and/or restore the Leased Premises as provided in
this Section 14. In the event Tenant shall not so elect to
extend the Term, both Landlord and Tenant shall each have
the option to terminate this Lease by written notice from
the terminating party to the other party given within sixty
(60) days after the date of such casualty and, in such
event, this Lease shall terminate as of the date of such
casualty.
d) If this Lease is terminated pursuant to this Section
14, Landlord shall promptly pay to Tenant any prepaid but
unearned Basic Rent and other charges paid by Tenant, or
Tenant shall promptly pay to Landlord any Basic Rent and
other charges earned and unpaid, and Tenant shall pay
Landlord (i) the amount of all insurance proceeds and (ii)
the amount of the difference between the insurance proceeds
and the full replacement cost of the Leased Premises.
e) If, during the Term, a fire or other casualty shall
damage or destroy any portion of the Leased Premises but
shall not render the Leased Premises untenantable, in
Tenant's reasonable judgment, Tenant shall repair all such
damage or destruction except to the extent fire or other
casualty damages or destroys any structural elements of the
Leased Premises (as set forth in Section 10(b). Landlord
shall repair any damage or destruction to the structural
elements of the Leased Premises (as set forth in Section
10(b) within sixty (60) days from the date of such casualty;
Tenant shall provide Landlord with (i) all insurance
proceeds associated with such damage or destruction of the
structural elements of the Leased Premises and (ii) the
amount of the difference between the insurance proceeds and
the cost to repair any such damage or destruction of the
structural elements of the Leased Premises.
16
f) If Landlord is required to repair and restore the
Leased Premises pursuant to this Section 14, the applicable
provisions of Section 2 above and the Construction
Provisions shall apply with respect to Landlord' s
construction work related to such repair or restoration.
However, if the nature of the damage is such that it would
be impractical to apply some or all of the provisions of
Section 2 and the Construction Provisions to Landlord's
construction work as mutually and reasonably determined by
Landlord and Tenant, then Landlord and Tenant shall agree on
an alternative provision or provisions which shall be
incorporated into a written agreement executed by both
Landlord and Tenant.
15) CONDEMNATION.
a) If the whole of the Leased Premises shall be acquired or
taken by eminent domain condemnation or private purchase
under threat thereof or in lieu thereof, including, without
limitation, the physical occupation of the Leased Premises
or any portion thereof or the filing of eminent domain or
condemnation papers by appropriate authorities (a "Taking"),
then this Lease and the Term shall automatically cease and
terminate as of the date on which the condemning authority
or private purchaser shall have the right to possession of
the Leased Premises or any portion thereof (the "Taking
Date").
b) If any part of the Leased Premises shall be so taken
and such partial Taking shall render that portion not so
taken unsuitable, as determined by Tenant in its reasonable
discretion, for the purposes for which the Leased Premises
were leased, or if any access, curb cut or other access
point on or to the Leased Premises is modified in a manner
which adversely and materially affects Tenant's business or
is lost as a result of any Taking, then Tenant shall have
the right to terminate this Lease by written notice sent to
Landlord within twelve (12) months after the Taking Date. If
any part of the Leased Premises shall be so taken and this
Lease shall not be so terminated, then this Lease shall
continue in full force and effect except that the Basic Rent
and all other charges payable by Tenant shall be reduced in
the same proportion that the gross leasable area of the
portion of the Leased Premises that has been taken bears to
the total gross leasable area of the entire Leased Premises
and Landlord shall, within thirty (30) after the Taking
Date, commence to make all necessary repairs and alterations
to restore the untaken portion of the Leased Premises to as
near its former condition as practicable such that the
untaken portion of the Building will be a complete
architectural unit. In its performance of such repair and/or
restoration work pursuant to this Section 15, the applicable
provisions of Section 2 above and the Construction
Provisions shall apply with respect to Landlord' s
construction work related to such repair or restoration.
However, if the nature of the damage is such that it would
be impractical to apply some or all of the provisions of
Section 2 and the Construction Provisions to Landlord's
construction work as mutually and reasonably determined by
Landlord and Tenant, then Landlord and Tenant shall agree on
an alternative provision or provisions which shall be
incorporated into a written agreement executed by both
Landlord and Tenant.
17
c) If this Lease is terminated as provided in this Section
15, Landlord shall promptly pay to Tenant any prepaid but
unearned Basic Rent and other charges, or Tenant shall
promptly pay to Landlord any Basic Rent and other charges
earned and unpaid.
d) In the event of a Taking, whether permanent or
temporary, of any pylon or monument sign (as contemplated by
Section 8(b) above) on whim Tenant has installed
identification panels, Tenant shall provide a substitute
site (reasonably acceptable to Tenant) therefor, within a
reasonable period of time after such Taking. If Landlord
shall receive compensation from the condemning authority for
such Taking of any such sign, Landlord shall pay said
compensation to Tenant within fifteen (15) days after
Landlord's receipt thereof.
e) In the event of a Taking as described in this Section
15, Tenant shall be entitled to claim compensation from the
condemning authority for (i) the value of its leasehold
estate in the Leased Premises and (ii) damages occurring by
reason of the Taking, including but not limited to loss of
good will or future profits or in respect of Tenant's
Personal Property, the cost or expense for the repair and
removal of such Personal Property, moving or relocation
expenses, and any other items to which Tenant may be
entitled under applicable law.
16) TENANT'S DEFAULT:
a) The following shall constitute an event of default by
Tenant hereunder (an 'Even of Tenant Defaulft);
i) Tenant's failure to make any payment of money
required by this Lease (including, without limitation,
Basic Rent or Real Estate Taxes) (subject to Tenant's
right of good faith contest), within ten (10) days
after Tenant's receipt of written notice from Landlord
to Tenant that same is overdue; or
ii) Tenant's failure to observe or perform any other
material provision of this Lease within thirty (30)
days after Tenant's receipt of written notice from
Landlord to Tenant specifying such default and
demanding that the same be cured; provided that if such
default cannot with due diligence be wholly cured
within such thirty (30) day period, Tenant shall have
such longer period as is reasonably necessary to cure
the default, so long as Tenant proceeds promptly to
commence the cure of same within such thirty (30) day
period and diligently prosecutes the cure to
completion.
b) Upon the occurrence of an Event of Tenant Default, at
Landlord's option, in addition to any and all other
remedies which it may have at law and/or in equity
(except as provided below), and without its actions
being deemed an election of remedies or a cure of
Tenant's default, Landlord may (a) terminate this Lease
or (b) re-enter the Leased Premises by judicial
proceeding, expel Tenant and remove all property from
the Leased Premises, and relet the Leased Premises at
the best possible rent obtainable and receive the rent
there from In the event Landlord relets the Leased
Premises, all rentals received
18
by Landlord shall be applied, first. to the payment of
any indebtedness other than Basic Rent and other
charges due hereunder from Tenant to Landlord; second,
to the payment of any costs and expenses of such
reletting, excluding tenant upfit costs; third, to the
payment of Basic Rent and other charges due and unpaid
hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of any future Basic
Rent and/or other charges due and unpaid hereunder.
Tenant shall remain liable to Landlord for the
deficiency, if any, between the Basic Rent and all
other charges payable by Tenant pursuant to this Lease
and the rent and all other charges payable by the new
tenant pursuant to the new lease obtained by Landlord
on reletting. In the event this Lease sha1l be
terminated as provided above, Landlord, its agents,
servants or representatives may immediately or at any
time thereafter peaceably re-enter and resume
possession of the Leased Premises and remove all
persons and property therefrom, by summary
dispossession proceedings. The various rights and
remedies reserved to Landlord herein are cumulative,
and Landlord may pursue any and all such rights and
remedies, whether at the same time or otherwise (to the
extent not inconsistent with specific provisions of
this Lease); provided that Landlord shall have the duty
in any instance to mitigate its damages with respect to
any Event of Tenant Default. Notwithstanding anything
herein to the contrary, (i) Landlord expressly waives
its right to forcibly dispossess Tenant from the Leased
Premises, whether peaceably or otherwise, without
judicial process, such that Landlord shall not be
entitled to any "commercial lockout" or any other
provisions of applicable law which permit landlords to
dispossess tenants from commercial properties without
the benefit of judicial review and (ii) Landlord shall
in no event have any right to accelerate the Basic Rent
or any other charges payable by Tenant hereunder.
17) LANDLORD'S DEFAULT.
a) The following shall constitute an event of default by
Landlord hereunder (an "Event of Landlord Defaulf')
(i) Landlord's failure to make any payments of money
due Tenant or any third party, including but not
limited to the payment of the brokerage commissions
pursuant to Section 28(s) below, within ten (10) days
after the receipt of written notice from Tenant that
same is overdue; or
(ii) Landlord's failure to perform any nonmonetary
obligation of Landlord hereunder within thirty (30)
days after receipt of written notice from Tenant to
Landlord specifying such default and demanding that the
same be cured; provided that, if such default cannot
with due diligence be wholly cured within such thirty
(30) day period, Landlord shall have such longer period
as may be reasonably necessary to cure the default, so
long as Landlord proceeds promptly to commence the cure
of same within such thirty (30) day period and
diligently prosecutes the cure to completion and
provided further that in the case of an emergency,
Tenant shall be required to give only such notice as is
reasonable under the circumstances.
19
b) Upon the occurrence of an Event of Landlord Default, at
Tenant's option, in addition to any and all other remedies which
it may have at law and/or in equity, and without its actions
being deemed an election of remedies or a cure of Landlord's
default, Tenant may do all or any of the following:
(i) pay or perform such obligations and offset
Tenant's actual cost of performance, including any and
all transaction costs and attorneys' fees, against the
Basic Rent and any and all other amounts and charges
due Landlord hereunder; or
(ii) withhold Basic Rent and any other payments
due to Landlord under this Lease until such Event of
Landlord Default, transaction costs and attorneys' fees
specified in subsection (i) above, is cured by
Landlord; or
(iii) terminate this Lease and/or xxx for damages,
including transaction costs and attorneys' fees
specified in subsection (i) above.
With respect to a breach by Landlord of the provisions
of Section 18 below, Tenant shall be entitled to any
remedies provided therein, in addition to those remedies
provided herein.
The various rights and remedies reserved to Tenant
herein are cumulative, and Tenant may pursue any and all
rights and remedies, whether at the same time or otherwise.
Notwithstanding the foregoing, a delay by Tenant in
exercising its cure rights or other remedies hereunder shall
not be deemed a Force Majeure Event for purposes of
extending the date(s) established for performance by
Landlord.
c) Any offset made by Tenant against Basic Rent or any
other charges otherwise due by Tenant hereunder shall be
without liability to Tenant, shall not constitute a default
on behalf of Tenant and shall not affect any other rights or
remedies Tenant may have against Landlord for failure to
comply with the provisions herein.
18) NON-COMPETITON.
a) Neither Landlord nor any stockholder, member, partner,
beneficiary, successor, assign, personal representative,
heir, subsidiary or affiliate of Landlord, nor any person(s)
or entity(ies) having a direct or indirect interest in
Landlord, shall, for as long as this Lease remains in force
and effect, either directly or indirectly, own, occupy or
operate, or sell, lease or otherwise transfer to any person
or entity , or permit any person or entity to occupy, any
land, building, premises or space, whether presently owned
or hereafter acquired, located within two (2) miles of the
Leased Premises for the purpose of (i) conducting thereon a
business similar to that being conducted by Tenant on the
Leased Premises or (ii) the sales, display or rental of
automotive parts, accessories, supplies and/or maintenance
items. In addition, neither Landlord nor any stockholder,
member, partner, beneficiary, successor, assign, personal
representative, heir, subsidiary or affiliate of Landlord,
nor any person(s) or entity(ies) having a direct or indirect
interest in
20
Landlord, shall lease, sell or otherwise transfer or convey
any such premises adjacent to and/or contiguous with the
Leased Premises without imposing thereon a restriction to
secure compliance herewith, or permit any tenant or occupant
of any such premises or any part thereof to sublet or assign
in any manner, directly or indirectly, any part thereof to
any person" firm, corporation or other entity engaged in any
such business described above, without the prior written
consent of Tenant, which consent may be withheld by Tenarit
in Tenant's sole discretion.
b) Tenant shall, in the event that there is a breach of
any of the provisions of this Section 18, have the following
rights and remedies, none of which shall be exclusive of the
other remedies or any other remedy otherwise available to
Tenant:
i) Tenant may institute proceedings to enjoin the
violation;
ii) If such breach continues for a period of thirty
(30) days after written notice thereof shall have been
given by Tenant to Landlord, Tenant may, at any time
thereafter, elect to terminate this Lease and, on such
election, this Lease shall, on the date stated in the
notice of such election, be terminated, and Tenant
shall be released and discharged of and from any and
all further liability hereunder;
iii) Landlord shall protect, defend, indemnify and
hold Tenant harmless from all losses, damages,
liabilities, costs and expenses (including, without
limitation, reasonable attorneys' fees and court costs)
sustained or incurred in connection with any
proceedings instituted by Tenant as a result of any
such breach..
19) ENVIRONMENTAL :
a) As used herein, the term "hazardous Substance" includes
petroleum, natural or synthetic gas products and any
hazardous, toxic or dangerous waste, pollutant, contaminant,
substance or material defined as such in, or for the
purposes of, the "Environmental Laws" (as hereinafter
defined). For the purposes of this Lease, the term
"Environmental Laws" means any environmental, health or
safety law, rule, regulation, ordinance, order or decree,
including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, as
amended, the Resource Conservation and Recovery Act, as
amended, any "Superftmd" or "Super Lien" law or any other
federal, state, county or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating
to or imposing liability or standards of conduct concerning
any petroleum, natural or synthetic gas products and/or
hazardous, toxic or dangerous waste pollutant or
contaminant, substance or material as may now or any time
hereinafter be in effect
b) Landlord represents, warrants and covenants that:
(i) to the best of Landlord's knowledge and belief,
the Leased Premises is in compliance with all Environmental
Laws and no Hazardous Substances have been
21
released or threatened to be released upon, in, at, around or
under the Land or off- site locations within one (I) mile of the
Land that are owned, operated or controlled by Landlord or any
party related to Landlord to any degree, except as disclosed in
the Phase I Report (as defined in Section 19(c)
(ii) to the best of Landlord's knowledge and belief,
there is not now, pending or threatened, any action, suit,
investigation or proceeding against Landlord or the Land, or
against any other property relating to the Land, seeking to
enforce a right or remedy 1Blder common law or under any of
the Environmental Laws;
(iii) Landlord has, to the best of Landlord's knowledge
and belief, complied with and will continue to comply with
all applicable Environmental Laws relating to or affecting
the Leased Premises including, without limitation,
Landlord's business operations upon or off the Leased
Premises (including, without limitation, all Environmental
Laws with respect to the registration, testing and upgrading
ofundergro1Bld or above ground storage tanks);
(iv) Landlord has not, to the best of Landlord's
knowledge and belief, and will not engage in any activities
that constitute spilling, leaking, emitting, discharging,
injecting, dumping or disposing of any Hazardous Substances
into the environment on, above, below or surrounding the
Leased Premises;
(v) to the best of Landlord's knowledge and belief,
there is no asbestos. containing material on the Leased
Premises;
(vi) Landlord has, to the best of Landlord's knowledge
and belief, obtained, and will at all times continue to
obtain and maintain, all required environmental licenses and
permits mlder the Environmental Laws that are necessary for
the ownership of the Leased Premises (the "Environmental
Permits"), and Landlord has, to the best of Landlord' s
knowledge and belief, complied with and will comply with all
other governmental or regulatory requirements necessary to
comply with the Environmental Laws. Landlord is, to the best
of Landlord's knowledge and belief, in full compliance with
the terms and provisions of the Environmental Permits and
will continue to comply with the terms and provisions of the
Environmental Permits; and
(vii) to the best of Landlord's knowledge and belief,
there are no Hazardous Substances located on, in, at or
under the Leased Premises that exceed action levels.
Landlord agrees to indemnify and hold Tenant harmless from
any and all claims, damages, fines, judgments, penalties,
costs, liabilities or losses (including, without limitation,
any and all sums paid for settlement of claims, attorneys'
fees, consultants' fees, and expert fees) arising at any
time from or in connection with (i) the presence or release,
or suspected presence or release, of Hazardous Substances or
asbestos-containing materials at, in or on the Leased
Premises unless the Hazardous Substances or asbestos.
22
containing materials are present solely as a result of the
breach by Tenant of the provisions of Section 19( d) below
or (ii) the violation of any Environmental Laws unless such
violation is due solely as a result of the breach by Tenant
of the provisions of Section 19(d) below. Without limiting
the foregoing, this indemnification (i) sha11 include any
and all costs incurred due to any investigation of the
Leased Premises or any cleanup, removal, or restoration
mandated by any governmental authorities and (ii) shall
specifically include any and all costs due to Hazardous
Substances that flow, diffuse, migrate, or percolate into,
onto, or under the Leased Premises.
c) Tenant's obligations under this Lease are
conditioned upon (i) the Land being in compliance with all
Environmental Laws and (ii) the Land being free from any and
all Hazardous Substances. In order to determine
preliminarily such compliance with Environmental Laws and
the lack of Hazardous Substances, Landlord shall within
thirty (30) days of the date of this Lease obtain and
provide Tenant with a copy of a Phase I environmental report
(the "Phase I Report") to be prepared at Landlord's sole
cost and expense. In the event the Phase I Report reflects
(i) any potential non-compliance with Environmental Laws
and/or (ii) the potential existence of Hazardous Substances
on or under the Land, and the Phase I Report recommends
further study, Landlord shall, within thirty (30) days of
the date of the Phase I Report, order a Phase II
environmental report (the "Phase n Report" and, together
with the Phase I Report, the "Environmental Reports") to be
prepared at its sole cost and expense. The Environmental
Reports shall be prepared by a qualified environmental firm
reasonably acceptable to Tenant and shall be addressed and
certified to both Landlord and Tenant such that both
Landlord and Tenant shall be entitled to rely thereon. In
the event the Environmental Reports reflect that (i) the
Land is not in compliance with the Environmental Laws and/or
(ii) the Land is not free from any and all Hazardous
Substances, this Lease shall be null and void on the later
of the thirtieth (30yh) day after Tenant receives a copy of
the most recent of the Environmental Reports or the
thirtieth (30th day) after the Commencement Date unless (i)
Tenant expressly waives, in writing, such nullification or
(ii) Landlord elects, by written notice given to Tenant
prior to the expiration of such thirty (30) day period, to
have the non-compliance condition and/or the presence of
Hazardous Substances remediated. If Landlord elects to
undertake any such remediation, Landlord shall diligently
perform such remediation and this Lease shall remain in
effect for a period of one hundred and twenty (120) days
subsequent to the thirty (30) day period described in the
previous sentence (the "Remediation Period") to permit such
remediation, but if such remediation has not been completed
by the end of the Remediation Period this Lease may be
terminated by Tenant upon written notice to Landlord. .
d) Tenant covenants that, during the period of its
possession of the Leased Premises, Tenant and its employees
shall comply with all Environmental Laws that are applicable
to Tenant's use of the Leased Premises. Tenant agrees to
indemnify and hold Landlord harmless from any and all
claims, damages, fines, judgments, penalties, costs,
liabilities, or losses (including, without limitation, any
and all sums paid for settlement of claims, attorneys' fees,
consultants' fees, and expert fees) arising at any time
solely as a result of the violation by Tenant and/or its
employees of the foregoing covenant. Without limitation of
the foregoing, this indemnification shall include any and
all costs incurred
23
by Landlord due to any investigation of the Leased Premises or
any cleanup, removal, or restoration mandated by any governmental
authorities.
20) SUBORDINATION ESTOPPELS.
a) Simultaneously with the execution hereof, Landlord shall
deliver to Tenant, with regard to any and all "Ground
Leases" (as hereinafter defined) and any and all "Mortgages"
(as hereinafter defined) encumbering the Leased Premises as
of the Commencement Date of this Lease, a subordination, non-
disturbance and attomment agreement in the fofII1 attached
hereto as Exhibit "C", executed by the lessor under any such
Ground Lease ("Ground Lessor") or the holder of such
Mortgage ("Mortgagee"), as applicable. Tenant shall have no
obligation to pay Basic Rent or other charges hereunder
until such subordination, non-disturbance and attornment
agreement(s) are delivered to Tenant, whereupon Tenant shall
pay all accrued Basic Rent and other charges due hereunder
at the time of such delivery .In addition, throughout the
Term, Landlord shall deliver to Tenant a subordination, non-
disturbance and attornment agreement in the form attached
hereto as Exhibit "C" executed by any Ground Lessor or
Mortgagee (as applicable) with regard to all future Ground
Leases and Mortgages and with regard to all renewals,
modifications, replacements and extensions of such Ground
Leases or Mortgages. Upon Tenant's receipt of the executed
subordination, non-disturbance and attornment agreement,
this Lease shall be subordinate to the corresponding Ground
Lease or Mortgage. Landlord shall cause any present or
future Mortgagee to deliver a subordination, non-disturbance
and attornment agreement in accordance with this Section
20(a) at or prior to the time which the lien of the Mortgage
is filed against record title to the Leased Premises. As
used in this Lease, the term "Mortgage" shall mean any
mortgage, deed to secure debt, deed of trust, trust deed or
other collateral conveyance of, or lien or encumbrance
against, all or any portion of the Leased Premises, and the
term "Ground Lease" shall mean any ground lease or master
lease affecting all or any portion of the Leased Premises.
b) Tenant shall, at all reasonable times, upon at least
thirty (30) days' prior written notice from Landlord,
provide Landlord with an estoppel certificate in the form
attached hereto as Exhibit "E. "
c) No Personal Property of Tenant shall be subject to
mortgage liens of Landlord.
21) TENANT'S PROPERTY AND WAIVER OF LANDLORD'S LIEN. All of
Tenant's Personal Property, except that which is permanently
attached, and inventory shall be and remain the personal property
of Tenant and shall be removable by Tenant any time prior to the
expiration or earlier termination of this Lease. Notwithstanding
anything contained herein to the contrary , Landlord expressly
waives its statutory or common law landlord's liens (as same may
be enacted or may exist from time to time) and any and all rights
granted under any present or future laws to levy or distrain for
rent (whether in arrears or in advance) against the Personal
Property and further agrees to execute any reasonable instruments
evidencing such waiver, at any time or times hereafter upon
Tenant's request.
24
22) TENANT'S FINANCING. Notwithstanding any other provisions of
this Lease, Tenant may, without Landlord's consent, from time to
time, secure financing or general credit lines and grant the
lenders thereof, as security therefor, (i) a security interest in
the Personal Property , (ii) the right to enter the Leased
Premises to realize upon any Personal Property so pledged, and/or
(iii) a collateral assignment of Tenant's leasehold interest in
the Leased Premises, with rights of reassignment; provided,
however, such collateral assignment may be made solely for the
purpose of securing Tenant' s indebtedness .
23) COMPLIANCE WITH APPLICABLE LAWS AND PERMI1TED ENCUMBRANCES.
During the Term, Landlord and Tenant shall comply with (i) all
lawful requirements of the local, county and state health boards,
police and fire departments, municipal and state authorities and
any other governmental authorities with jurisdiction over the
Leased Premises and (ii) any covenants, restrictions and
requirements contained in the Permitted Encumbrances, respecting
Tenant's use and occupancy of the Leased Premises.
24) NOTICES. Notices under this Lease shall be in writing and
shall be deemed properly served and received: (i) two (2)
business days after being deposited in the United States mail, as
certified or registered mail, return receipt requested, bearing
adequate postage, (ii) one (1) business day after being deposited
with a reputable overnight delivery carrier (e.g. Federal
Express, Airborne, UPS, Express Mail) for guaranteed next day
delivery with a request that the addressee sign a receipt
evidencing delivery or (iii) upon receipt if personally
delivered. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was
given shall be deemed to be receipt of the notice as of the date
of such rejection, refusal or inability to deliver. Notices shall
be addressed as follows:
To Landlord at: Xxxxx-Xxxxx Development Group, Ltd.
0000 Xxxxx XxXxxx Xxxx
XxXxxxx, XX 00000
To Tenant at: Advance Stores Company, Incorporated
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Real Estate Department
for overnight delivery: 0000 Xxxxxxx Xxxx
Xxxxxxx, V A 24012
Attn: Real Estate Department
With a copy to: Advance Stores Company, Incorporated
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Legal Department
or to any other address furnished in writing by any of the
foregoing. However, any change of address furnished shall comply
with the notice requirements of this Section 24 and shall include
a complete outline of all current addresses to be used for all
parties.
25
25) NO LIENS. Should any lien of any nature be filed against
the Leased Premises, the party on accoill1t of whose actions such
lien has been filed shall, within thirty (30) days after receipt
of written notice of such lien, cause such lien to be removed, or
otherwise protected against execution during good faith contest,
by substitution of collateral, posting a bond therefor, escrowing
of adequate funds to cover the claim and related transaction
costs or such other method as may be permissible ill1der
applicable title insurance regulations and reasonably acceptable
to the other party hereto.
26) COVENANT OF QUIET ENJOYMENT. Landlord covenants, warrants
and represents that Tenant, upon paying the rent herein reserved
and perfon11ing the covenants and agreements hereof, shall
peaceably and quietly have, hold and enjoy the Leased Premises
during the Term. No third party has the right to prohibit
Tenant's tenancy hereunder, to prohibit Tenant or its employees,
customers and/or invitees from using the Leased Premises in
accordance with the terms of this Lease or to consent to or
approve (excepting governmental agencies) any feature of the
Leased Premises or Tenant's signage. There shall be no
restrictions of any kind during the Te11Il that could prevent,
limit or restrict the use of the Leased Premises in accordance
with the terms of this Lease, including, without limitation, (x)
the operation of a retailer of automotive parts, accessories,
supplies and/or maintenance items and (y) truck deliveries to the
Leased Premises during Tenant's business hours. No signboards or
other construction which obstructs the view of the Leased
Premises from adjoining public streets shall be erected during
the Term upon any property owned, leased, operated or otherwise
controlled by Landlord or any stockholder, member, partner,
beneficiary , successor, assign, personal representative, heir,
subsidiary or affiliate of Landlord, or any person(s) or
entity(ies) having a direct or indirect interest in Landlord.
Notwithstanding the foregoing, in the event that an intentional
or negligent act or omission or violation of any applicable law,
rule or regulation by Tenant, or any assignee (to the extent
Tenant remains liable ill1der this Lease subsequent to an
assignment pursuant to Section 9) or subtenant of Tenant results
in the limitation or restriction of its use of the Leased
Premises, neither Tenant nor any such assignee or subtenant shall
be able to claim such limitation or restriction to be an Event of
Landlord Default hereunder.
27) SURRENDER: HOLDING OVER
a) Upon expiration of this Lease, or its earlier
termination, Tenant will surrender possession of the
Leased Premises (except for any and all of Tenant's
Personal Property removed from the Leased Premises) to
Landlord in broom clean condition, except for ordinary
wear and tear and loss by fire or other casualty or by
a "Taking" (as hereinafter defined).
b) If Tenant shall remain in possession of the Leased
Premises or any part thereof after expiration of the
Term without an agreement in writing between Landlord
and Tenant with respect thereto, Tenant shall be deemed
a tenant from month to month upon the same terms and
conditions as contained in this Lease. Notwithstanding
the foregoing, Tenant shall pay Landlord, as rental on
the Leased Premises for any period that Tenant remains
in possession of the Leased Premises after expiration
of the Term, an amount equal to one hundred ten percent
(110%) of the Basic Rent which Tenant would otherwise
have paid if the Term had not expired for each month or
any portion thereof in which Tenant occupies the Leased
Premises after the expiration of the Term.
26
28) MISCELLANEOUS PROVISIONS.
a) Time of Essence. Time is of the essence with
respect to any time periods or dates referenced in this
Lease with respect to both Landlord and Tenant.
b ) Confidentiality .Except for documents that are or
will be a matter of public record or information which
the other party has agreed to in writing may be
disclosed, the parties hereto, including, but not
limited to, their heirs, successors, assigns and legal
representatives, agree to use their best reasonable
efforts to maintain the confidentiality of, and shall
not disclose to any third party (except to an
accountant, attorney, potential purchaser, tax preparer
for tax return preparation or lender to the extent such
person agrees to be bound by this confidentiality
provision), any terms of this Lease or any
correspondence, documents and/or things relating to
this Lease, unless such terms, correspondence,
documents and/or things are legally required to be
disclosed. This confidentiality agreement extends to
any developers, bankers, lawyers, accountants,
employees, agents or any other persons acting on behalf
of the parties hereto. Notwithstanding anything
contained herein to the contrary , any breach of this
confidentiality agreement shall constitute an automatic
Event of Default without notice or cure provided, for
which either party may recover damages as their sole
remedy and for which neither party can terminate this
Lease.
c) Identity of Interest. Nothing contained in this
Lease shall be construed to make Landlord and Tenant
partners or joint venturers or to render either party
liable for the debts or the obligations of the other.
The only relationship created by this Lease between the
parties is that of landlord and tenant.
d) Third Party Beneficiaries. Except as herein
specifically provided, no person, subtenant, customer,
employee or invitee or any other third party shall be
deemed to be a third party beneficiary of any of the
provisions herein.
e) Partial Invalidity .If any section, paragraph,
subparagraph, sentence, clause or phrase of this Lease
shall be declared or judged invalid or
unconstitutional, such declaration or adjudication
shall not affect the other sections, paragraphs,
subparagraphs, sentences, clauses or phrases of this
Lease, all of which shall remain in full force and
effect.
Memorandum of Lease: Declaration. Simultaneously with
the execution of this Lease, Landlord shall (i) cause to be
prepared and executed, at its expense, a short form or
memorandum of this Lease in the form attached hereto as
Exhibit "F" (the "Lease Memorandum") and (ii) submit same to
Tenant. In the event a Lease Memorandum cannot be recorded
in the State or locality in which the Leased Premises is
located due to legal or financial considerations, as
determined by Tenant in its sole discretion, after
consultation with Landlord concerning the requirements of
said State or locality , Landlord shall (i) cause to be
prepared and executed, at its expense, a Declaration of
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Covenants, Conditions and Restrictions encumbering the
Leased Premises and any other real property owned, leased,
operated or otherwise controlled by Landlord and/or related
entities and located adjacent to or within two (2) miles of
the Leased Premises, the form of which Declaration is
attached hereto as Exhibit "a" (the "Declaration") and (ii)
submit same to Tenant. Landlord shall record, at Tenant's
expense, such Lease Memorandum or Declaration, as
applicable. The provisions of this Lease shall control with
regard to any omissions from, or provisions hereof which may
be in conflict with, the Lease Memorandum or the
Declaration. Notwithstanding the foregoing, this Lease shall
not be recorded in any office or place of public record, and
if either party shall record this Lease or cause or permit
the same to be recorded, such act may be treated as a breach
of this Lease by such recording party .Upon the expiration
or earlier termination of this Lease, the parties hereto
shall execute a mutually acceptable agreement terminating
the Lease Memorandum or the Declaration, as applicable.
g) Notices Affecting the Leased Premises. Landlord shall
promptly forward to Tenant any notice or other communication
affecting the Leased Premises received by Landlord from any
owner of property adjoining, adjacent or nearby to the
Leased Premises or from any municipal or governmental
authority , in connection with any hearing or other
administrative procedure relating to the use or occupancy of
the Leased Premises or any such neighboring property .
h) Headings: Gender. The section headings are for
convenience and are not a part of this Lease. The masculine,
feminine or neuter gender and the singular or plural number
shall be deemed to include the others whenever the context
so requires or indicates.
i) No Waiver. The failure of either party to insist in
anyone or more instances upon a strict performance of any
covenant of this Lease or to exercise any option or right
herein contained shall not be construed as a waiver or
relinquishment for the future enforcement of such covenant,
right or option, but the same shall remain in full force and
effect, unless the contrary is expressed in writing by such
party.
j) Force Majeure. Except as otherwise specifically
contemplated in this Lease, in the event that Landlord or
Tenant shall be delayed or hindered in, or prevented from,
the performance of any act required hereunder by reason of
strikes, lockouts, labor troubles, inability to procure
materials, delay by the other party, failure of power or
unavailability of utilities, riots, insurrection, war,
terrorism or other reason of a like nature not the fault of
such party or not within its control (each, a "Force Majeure
Event"), then performance of such act shall be excused for
the period of delay, and the period for the performance of
any such act shall be extended for a period equivalent to
the period of such delay; provided, however, the party
claiming a delay by reason of a Force Majeure Event shall
notify the other party within five (5) business days
following the onset of the Force Majeure Event.
k) Pre-existing Conditions. Nothing contained in this Lease
shall be construed to impose any responsibility upon Tenant
with regard to any loss, injury or other claim arising as a
result of any condition that existed on the Leased Premises
at the time of Tenant's taking possession thereof. Landlord
shall use its best efforts to restrict Xxxxx
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Companies from advertising with any entity whose primary use is
the display, storage, and sale of automotive parts, accessories,
supplies, and/or maintenance items.
I) No Offer. Tenant's delivery to a prospective landlord
of this form of Lease shall not be deemed an offer to lease
even though such form may have been completed in every
respect.
m) Choice of Law. This Lease shall be construed in
accordance with and governed by the laws of the State.
n) Binding Effect. This Lease shall inure to the benefit
of and be binding upon Landlord and Tenant and their
respective heirs, executors, legal representatives,
successors and assigns.
o) No Construction Against Drafting Party This Lease has
been prepared by Tenant and its professional advisors and
reviewed by Landlord and its professional advisors. Tenant,
Landlord and their separate advisors believe that this Lease
is the product of all of their efforts, that it expresses
their agreement, and that it showed not be interpreted in
favor of either Tenant or Landlord or against either Tenant
or Landlord merely because of their efforts in preparing it.
p ) Entire Agreement: Amendment. This Lease and the
attached exhibits constitute the entire agreement between
Landlord and Tenant with respect to the Leased Premises, and
all negotiations, considerations, representations and
understandings between Landlord and Tenant prior to the
execution of this Lease are incorporated herein. Neither
this Lease nor any of its provisions nor any of the
documents creating the Permitted Encumbrances set forth in
"Exhibit H" may be amended, modified, waived, discharged or
terminated except by an instrument in writing signed by the
parties hereto.
q) Trademarks and Trade Names. All trademarks, trade
names, service marks, signs and all other marks of
identification used by Tenant in its business shall at all
times remain -the exclusive property of Tenant, and Landlord
shall have no right, interest in, or title to any of
Tenant's trademarks, trade names, service marks, signs or
other marks of identification.
r) Holidavs. If the day on which any rent or any other
payment due hereunder is payable falls on a Saturday or
Sunday or on a legal holiday , it shall be payable on the
following business day.
s) Brokers. Tenant and Landlord warrant each to the other
that it has had no dealings with any broker or agent in
connection with this lease, and each party covenants to pay,
hold harmless and indemnify the other from and against any
and all costs, expenses or liability for any compensation,
commissions and charges claimed by any broker or agent with
respect to this lease or the negotiation thereof.
t) Counterparts. This Lease may be executed in more -than
one counterpart, each of which shall be deemed an original
but all of which together shall constitute one and the same
instrument.
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u) Exhibits. The following Exhibits are attached hereto
and incorporated herein by this reference:
EXHIBIT "A" -Survey of Land
EXHIBIT "B" -Construction Provisions
EXHIBIT "C" -Subordination, Non-Disturbance and Attornment
Agreement
EXHIBIT "D" -Commencement Agreement
EXHIBIT "E" -Estoppel Certificate
EXHIBIT "F" -Lease Memorandum
EXHIBIT "G" -Declaration
EXHIBIT "H" -Permitted Encumbrances
EXHIBIT "I -1 " -Exterior Sign
EXHIBIT "I-2" PYLON Sign
30
IN WITNESS WHEREOF, the parties hereto have caused this Lease
to be executed effective as of the day and year first written above.
LANDLORD:
XXXXX-XXXXX DEVELOPMENT GROUP LTD
a Texas limited partnership
By: DSL Management, LLC
a Texas limited liability company,
Its General Partner
By /s/ Xxxx Xxxxx
Name Xxxx Xxxxx
Its President
Date 1/27/05
TENANT:
ADVANCE STORES COMPANY,
INCORPORATED, a Virginia corporation
By: /s/ Xxxxxx X Xxxx
Name Xxxxxx X Xxxx
Its President
Date: 1/28/05
STATE OF TEXAS )
)SS
COUNTY OF XXXXXXX )
The undersigned, a Notary Public, in and for the County and State
aforesaid, does hereby certify, that Xxxx Xxxxx, personally known to me
to be the President of DSL Management LLC General Partner of Xxxxx-
Xxxxx Development Group LTD who acknowledged thaq he did sign the
foregoing instrument and that the same is the fee act of and on
behalf of said limited liability company and said limited partnership
and the free act and deed of him personally and as such President
appeared before me this day in perons and acknowledged under oath
that as such President he signed and delivered the said instrument
pursuant to authority duly given to him by said limited liability
company and said limited partnership.
Given under my hand and seal this 27th day of January, 2005
[Notary Seal] /s/ Xxxx X Xxxxx
Notary Public
COMMONWEALTH OF VIRGINIA )
)SS
COUNTY OF ROANOKE )
The undersigned a Notary Public in and for the County and State
aforesaid, does hereby certify, that Xxxxxx X Xxxx President of
Advance Stores Company Incorporated, a Virginia corporation, and
personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me this day
in person and acknowledged under oath that as such Presient, he
signed and delivered the said instrument pursuant to authority duly
given to him by said corporation.
Given under my hand and seal this 28th day of January 2005.
[Notary Seal] /s/ Xxxxx M Shaz
Notary Public
My Commission expires: 7-31-08
